Burden on plaintiff in fieri facias when possession not shown.

- When it does not appear in whose possession the property was found, the burden of proof is upon the plaintiff in fieri facias. Singer Sewing Mach. Co. v. Crawford, 34 Ga. App. 719, 131 S.E. 103 (1925).

Burden of proof is upon the plaintiff when entry of levy does not show that the defendant in execution was in possession of the property levied upon; and in such case the plaintiff in execution is entitled to the opening and conclusion of the argument. Miller v. Clermont Banking Co., 180 Ga. 556, 179 S.E. 718 (1935).

When the entry of the officer's levy does not show who was in possession of the land levied on, the burden is on the plaintiff in fieri facias. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942); Smith v. Hartrampf, 105 Ga. App. 40, 123 S.E.2d 417 (1961), later appeal, 106 Ga. App. 603, 127 S.E.2d 814 (1962).

Shifting of burden to claimant.

- To change the onus under this section from the plaintiff in execution to the claimant in a claim case, the plaintiff must show either title in the defendant in fieri facias, or possession in the defendant since the date of the judgment. Butt v. Maddox, 7 Ga. 495 (1849); Knowles v. Jourdan, 61 Ga. 300 (1878); S.T. Coleman & Burden Co. v. Rice, 105 Ga. 163, 31 S.E. 424 (1898).

Burden is on claimant when defendant in fieri facias is in possession to show the claimant's title to the property in defendant's possession. Jones Motor Co. v. W.R. Finch Motor Co., 34 Ga. App. 399, 129 S.E. 915 (1925).

Burden is on the claimant wherever the entry of levy recites that the property claimed was levied on in the possession of the defendant in execution, or the plaintiff offers other evidence to make that proof. Sealy v. Beeland, 183 Ga. 709, 189 S.E. 524 (1937).

When the defendant in fieri facias is in possession of the property levied upon, the burden of proof is upon the claimant. Parker v. Boyd, 208 Ga. 829, 69 S.E.2d 760 (1952).

Burden is on claimant when claimant admits title in defendant prior to judgment. S.T. Coleman & Burden Co. v. Rice, 105 Ga. 163, 31 S.E. 424 (1898); Sealy v. Beeland, 183 Ga. 709, 189 S.E. 524 (1937).

Evidence that defendant was in possession prior to judgment on which execution based will change burden. Deloach & Wilcoxson v. Myrick, 6 Ga. 410 (1849); Morgan v. Sims & Nance, 26 Ga. 283 (1858).

Effect of proof of defendant's possession at time of levy. Greene v. Mathews, 31 Ga. App. 265, 120 S.E. 434 (1923).

Evidence of entry on levy or other proof that the property was levied on in the possession of the defendant places the burden on the claimant to prove the claimant's claim. Smith v. Hartrampf, 105 Ga. App. 40, 123 S.E.2d 417 (1961), later appealed, 106 Ga. App. 603, 127 S.E.2d 814 (1962).

Effect of nonappearance of claimant.

- When the claimant fails to appear, the plaintiff may take a verdict upon proof of possession of the defendant. An entry of this fact on the execution is sufficient. Bank of S.W. Ga. v. Empire Life Ins. Co., 10 Ga. App. 320, 73 S.E. 597 (1912).

It is duty of plaintiff in fieri facias to prove, prima facie at least, that property levied upon is property of the defendant in fieri facias; and in a contest between the plaintiff in fieri facias and the claimant, the sheriff's entry of levy does not disclose that the property levied upon was in the possession of the defendant in fieri facias at the time of levy, it devolves upon the plaintiff in fieri facias to show, if the plaintiff can, by proper proof aliunde that the defendant was in possession. Jarrard v. Mobley, 170 Ga. 847, 154 S.E. 251 (1930).

Entry of levy showing defendant in possession.

- Recital in entry of levy that the defendant was in possession at the time of levy makes a prima facie case in favor of the plaintiff in execution on an issue raised by the claim interposed. Thompson v. Vanderbilt, 166 Ga. 132, 142 S.E. 665 (1928).

When in a claim case the plaintiff in an ordinary fieri facias introduces in evidence the execution, with entry of levy showing that the defendant in execution was in possession of the property at the date of the levy, such evidence makes a prima facie case in favor of the plaintiff in fieri facias. Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941).

Execution, with the entry of the levying officer reciting that the officer levied on the property in possession of the defendant in fieri facias, makes out a prima facie case in favor of the plaintiff in fieri facias. Smith v. Hartrampf, 105 Ga. App. 40, 123 S.E.2d 417 (1961), later appeal, 106 Ga. App. 603, 127 S.E.2d 814 (1962).

Proof of possession in defendant after rendition of judgment will raise presumption of title in defendant and require a finding in favor of the plaintiff in fieri facias, in the absence of rebutting evidence. Roughton v. Roughton, 178 Ga. 367, 173 S.E. 673 (1934).

Failure to timely request burden of proof instruction.

- In absence of timely request, it is not error because judge omitted instruction on burden of proof. Watson v. Sudderth, 32 Ga. App. 383, 123 S.E. 143 (1924).

Property levied upon in possession of defendant.

- It was error to charge jury that burden of proof rests upon the plaintiff if property was levied on in possession of the defendant in execution, and that otherwise, the burden of proof rests upon the claimant; when the plaintiff in fieri facias introduced the execution with the return of the officer showing the property levied on in the possession of the defendant in fieri facias at the time of the levy, the burden was then upon the claimant to show the claimant's title. N. Seligman & Co. v. Daniels, 61 Ga. App. 643, 7 S.E.2d 207 (1940).

Plaintiff has burden when claimant in possession of mortgaged property.

- When it appears from the levy in a claim case that the mortgaged property was in the possession of the claimant at the time of the levy, the burden is on the plaintiff in execution to prove title to the property in the mortgagor or defendant in execution at the time of the execution of the mortgage, or to prove possession in the mortgagor at the time, and when this is done the claimant is put upon an exhibition of the claimant's title. Tanner v. Tanner, 52 Ga. App. 460, 183 S.E. 666 (1936).

When mortgaged property is levied on under a mortgage fieri facias, and a claim is filed, the plaintiff in fieri facias must prove title to the property in the mortgagor at the date of the mortgage, or make out a prima facie case by proof of possession in the mortgagor at that time, before the claimant is put to an exhibition of the claimant's title. Tanner v. Tanner, 52 Ga. App. 460, 183 S.E. 666 (1936).

Evidence showing defendant husband in support case died in possession of property.

- When an execution is based on a judgment for year's support and is levied on the land as property of the deceased husband, and it is made to appear from the evidence that the husband claimed the property as his own, was in possession of the property for many years, and died in possession, a prima facie case is made out and the burden shifts from the plaintiff in fieri facias, and it is then incumbent upon the claimants to establish the claimants' title. Hicks v. Hicks, 193 Ga. 382, 18 S.E.2d 763 (1942).

Proof that defendant had title when the defendant made security deed to plaintiff is sufficient to make prima facie case against the claimant in favor of the plaintiff in fieri facias, notwithstanding that the entry of levy stated the claimant was in possession at the time of the levy. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570 (1939).

Estoppel from objecting to incorrect imposition of burden.

- Since the burden of proof may have been upon the plaintiff in a suit to foreclose upon a bill of sale, under the provisions of this section, if it does not appear that a claimant to the chattel made or urged any objection to the ruling of the court placing the burden of proof upon the claimant at the time such ruling was made, it is too late after judgment for the plaintiff for the claimant's counsel to interpose an objection. Gravitt v. Employees Loan & Thrift Corp., 75 Ga. App. 561, 44 S.E.2d 159 (1947).

Cited in First Nat'l Bank v. Spicer, 10 Ga. App. 503, 73 S.E. 753 (1912); Blount v. Dunlap, 34 Ga. App. 666, 130 S.E. 693 (1925); Peterson v. Wilbanks, 163 Ga. 742, 137 S.E. 69 (1927); Scruggs v. Blackshear Mfg. Co., 45 Ga. App. 855, 166 S.E. 249 (1932); Downs v. Brandon, 49 Ga. App. 198, 174 S.E. 647 (1934); Foremost Dairies, Inc. v. Kelley, 51 Ga. App. 722, 181 S.E. 204 (1935); Johnson v. Sherrer, 185 Ga. 340, 195 S.E. 149 (1938); Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939); Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570 (1939); Krasner v. Croswell, 76 Ga. App. 421, 46 S.E.2d 207 (1948); Ayares Small Loan Co. v. Maston, 78 Ga. App. 628, 51 S.E.2d 699 (1949); Jones v. Major, 80 Ga. App. 223, 55 S.E.2d 846 (1949); Whitlock v. Michael, 206 Ga. 749, 58 S.E.2d 833 (1950); Jones v. Major, 83 Ga. App. 78, 62 S.E.2d 729 (1950); Yancey Bros. Co. v. Caldwell, 93 Ga. App. 445, 91 S.E.2d 837 (1956); Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga. App. 607, 125 S.E.2d 656 (1962); Gresham v. O'Rear, 109 Ga. App. 711, 137 S.E.2d 395 (1964); Germaine v. Webster's Shopping Ctr., Inc., 116 Ga. App. 547, 158 S.E.2d 682 (1967); Swanson v. Universal Promotions, Inc., 144 Ga. App. 591, 241 S.E.2d 474 (1978).

C.J.S.

- 33 C.J.S., Executions, § 236.